Stand Your Ground Laws Are Unnecessary

Gregory O'Meara, a former prosecutor, is an associate professor of law at Marquette University.

Updated March 21, 2012, 9:56 PM

The difficulty with Stand Your Ground laws is that they are based on the assumption that neither the common law nor modern criminal codes adequately protect ordinary citizens who are under attack. This assumption is simply wrong. Contemporary criminal statutes express a nuanced and sophisticated concept of defensive force derived from hundreds of years of common law precedent. These laws adequately protect both the innocent and those who mistakenly believe they are under attack while permitting the criminal prosecution of trigger-happy cowboys.

Stand Your Ground laws provide a rock-solid defense to paranoid or dangerously aggressive people who are armed with deadly force.

To claim self defense or defense of others under current statutes, a person under attack (the defender) needs to raise credible proof: first, that he reasonably thought he (or another) was unlawfully under imminent deadly attack by another; second, that each forceful action, including deadly force, he took in response to this attack was necessary to stop the attack; and third, that he acted solely with the intent to thwart the unlawful attack. In many jurisdictions, the defender must withdraw from the fight before using deadly force if he can do so in complete safety. If the defender meets these requirements, he will be found not guilty. Furthermore, even if the defender is completely wrong about the situation but his mistake is reasonable about either the imminence of the deadly attack or the necessity of his forceful response, he still gets the full defense and will be found not guilty.

This is and has been the law in the Anglo-American system for over 400 years. As a result, these sorts of cases are almost never charged by prosecutors with limited state resources. In my home state of Wisconsin, a large group of criminal prosecutors, defense attorneys and judges could come up with only one case in which any homeowner was prosecuted when he shot someone who entered his home illegally. That conviction was later overturned.

By contrast, under the Stand Your Ground law, there is never a requirement that one withdraw or retreat before using deadly force, and the requirements of reasonableness are attenuated or essentially removed because the other witness is dead, and the defender may shade the truth. Thus, Stand Your Ground laws may provide a rock-solid defense to paranoid or dangerously aggressive people who are armed with deadly force.

Current law protects those using defensive force, including deadly force, while insisting that they act reasonably. Stand Your Ground laws upset that careful balance by removing the requirement that the defender act reasonably. For that reason, these laws should be repealed.